Poore v. State

Gilbert, C. J., delivered the opinion of the Court. I. THE FEDERAL WIRETAP AND ELECTRONIC EAVESDROPPING LAW AND ITS EFFECT UPON STATE LAW. Judge Orth (later Chief Judge and now an Associate Judge of the Court of Appeals), in State v. Siegel, 13 Md. App. 444 , 285 A. 2d 671 (1971), aff’d 266 Md. 256 , 292 A. 2d 86 (1972), discussed the judicial history which “cleared the way for the enactment of legislation giving sanction to the interception of wire or oral communications,” 13 Md. App. at 448-49 , 285 ⁴⁶ A. 2d at 674, the constitutionality of the Omnibus Crime Control and.Safe Streets Act of June 19, 1968 (Title III 18 U.S.C. §§ 2510-2520 ) and the use of the federal act by the prosecutorial authorities in this State. Siegel made clear that the several States were permitted to employ the federal wiretap and eavesdropping law only if the principal prosecuting attorney was allowed by State statute to apply for an order authorizing wire or oral communication interception.

If the State law empowered the principal prosecuting attorney of a political subdivision to seek such an order, “[t]he State court judge ... [can] grant... [it] only in conformity with the federal act and ‘with the applicable State statute.’ ” Id. at 459, 285 A. 2d at 680 . At the time of Siegel, Maryland had two (2) statutes in effect which dealt with the interception of wire or oral communications. Then Md. Ann. Code art. 35, §§ 92-99 (1956 Md. Laws ch. 116) 1 concerned wiretapping and then Md. Ann. Code art. 27, § 125 A-C (1959 Md. Laws ch. 706) 2 and § 125 D (1965 Md. Laws ch. 201) 3 relative to the interception of oral communication. 4 Siegel pointed out that not every violation of the law gives rise to the use of a judicially sanctioned wire or oral communication interception but only those crimes specified in 18 U.S.C. § 2516 (2) (1970) which are “murder, kidnapping, gambling, robbery, bribery, extortion, dealing in narcotic drugs, marihuana or other dangerous drugs” and conspiracy to commit any of such crimes. Section 2516(2) was broad enough, however, to include other crimes provided that those crimes are limited to crimes “dangerous to life, limb, or property, and punishable by imprisonment for more than one year” if a State statute so allows.

State v. Siegel, 13 Md. App. at 462 , 285 A. 2d at 682 . Moreover, Siegel made crystalline ⁴⁷ that the procedural aspects of 18 U.S.C. §§ 2510-2520 (1970), when viewed “in the light of its legislative history, see 2 United States Congressional and Administrative News (1968) 2191-2192, concede no exceptions.” Id. at 465 , 285 A. 2d at 683 . Because the State failed to obey the procedural safeguards of the federal act, we affirmed the dismissal by Judge Charles D. Harris in the Criminal Court of Baltimore of the Siegel indictment. The State sought and obtained certiorari by the Court of Appeals.

That Court affirmed our holding. State v. Siegel; 266 Md. 256 , 292 A. 2d 86 (1972). Judge Digges, who authored the opinion for the Court, commented that, “[w]e live in a world which has the capability not only to monitor our conversations, to ‘bug 1 our houses, but soon probably to delve into our innermost thoughts. To allow any of these things to occur without the strictest of controls would utterly destroy the basis of this nation’s existence.” Id. at 260-61 , 292 A. 2d at 89 .

In rejecting the argument that only substantial compliance with the federal act was necessary, Judge Digges responded, “[t]he statute [Title III 18 U.S.C. §§ 2510-2520 ] sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” Id. at 274, 292 A. 2d at 95 . (Emphasis supplied.) This Court, in Calhoun v. State, 34 Md. App. 365 , 367 A. 2d 40 (1976), utilized the refusal of the Court of Appeals to tolerate a deviation from strict compliance with Title III, 18 U.S.C. §§ 2510-2520 , no matter how slight, as “our guiding light.” Because the State had not abided by the “prescribed path” of the federal act, we reversed Calhoun’s conviction. A. The Facts of the Instant Case. On January 16,1976, the State’s Attorney of Baltimore City made application to Judge Paul E. Dorf in the Criminal Court of Baltimore for an order “in conformity with the provisions of 18 United States Code, Sections 2510-2530 [s/c], for the issuance of a Wiretap Order.” A reading of the application, however, indicates that the application really sought the ⁴⁸ court’s permission to enter secretly a hospital room in the University Hospital and to plant a particularly described transmitter or “bug” within that room.

William A. Cooper, a suspected dealer in heroin, was a patient in the room where the listening device was to be secreted. The application was based on the joint affidavit of Detectives Caggese and Smoot of the Baltimore City Police Department. That the affidavit established probable cause for the issuance of the order is not challenged so that we shall not set out the nefarious acts allegedly committed by William A. Cooper and eight (8) other named companions of Cooper in the illicit drug dispensing business. Judge Dorf signed the order on the same day.

It provided that the eavesdropping would be between the hours of “10:00 A.M. and 2:00 A.M.,” January 17, 1976, until 2:00 A.M. on February 1, 1976. 18 U.S.C. § 2518 (4)(e) (1970). The order also provided for orally advising the court of the “progress of the interception.” The progress reports were to be made to the judge each Monday and Thursday during the life of the order. 18 U.S.C. § 2518 (6) (1970). Upon the termination of the order, “the State’s Attorney ... or a prosecutor designated by him, and Detectives Caggese and Smoot... shall immediately make a Return to this Court of any and all logs and tape recordings obtained pursuant to this Order. ...” 18 U.S.C. § 2518 (8)(a) (1970). Additionally, the order commanded “that no later than ninety days after the termination of the interception process authorized by this Order, or extension hereof, an inventory shall be served upon the aforementioned persons and such other parties as this Court may designate in the interest of justice.” 18 U.S.C. § 2518 (8)(d) (1970).

The “bug” was installed in a fluorescent fixture directly above the bed of William A. Cooper. 5 All conversation occurring within the room was transmitted to and recorded by the surveillance team located on the floor above the one on which Cooper was a patient. The eavesdropping was “closed down at 4 o’clock on the 31st [of January].” The tape ⁴⁹ recordings were turned over to Assistant State’s Attorney F. Pond on February 1, 1976. Pond presented them to Judge Dorf on February 4, 1976. Judge Dorf apparently ordered them sealed and placed in the custody of the Clerk of the Criminal Court for safekeeping.

None of the parties whose conversation was recorded by the police was notified within the prescribed period. Notice was given to them on various dates from May 24, 1976, through June 7, 1976. A second electronic intercept order was obtained on application by the State’s Attorney, supported by the affidavit of Detectives Caggese and Smoot on February 17, 1976. The order permitted wiretaps to be placed upon the telephones of Anna Mae Jones at 3409 Milford Avenue, Jacqueline Gilliam, second floor of the same address, and Gerard Jones, third floor of the same address.

The persons whose conversations were to be intercepted were the same as those named in the eavesdrop order of January 16, 1976. Subsequently, arrests were made and the appellant, Phyllis Poore, along with Elizabeth Jennings (alias Elizabeth Harrington), Juliette Jennings, Gary Gilliam, Albert Tubman, Anna Mae Jones, Jackie Gilliam, Janie Harrington Brown, and James Garfield Gregory, 6 was indicted by the Grand Jury of Baltimore City for violating the Controlled Dangerous Substances laws of this State; all were convicted in the Criminal Court of Baltimore for one or more violations of those laws; all were apprehended as a result of judicially authorized eavesdropping or wiretapping; all have appealed; all assert the illegality of the State’s intrusion into their illicit business; all bottom their attack on the judgments of the Criminal Court on violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Although this appeal is concerned with Phyllis Poore, oral argument on the issues of the validity of the eavesdrop and wiretap raised by all appellants was consolidated. 7 Ergo, what ⁵⁰ we hold in this opinion with respect to those issues applies to each of the consolidated cases. Rather than repeat the discussion in each case, we shall merely refer to Part II of this opinion.

The appellants moved to suppress the evidence obtained through the eavesdrop order, to suppress the evidence acquired as a result of the wiretap because it was tainted by the illegality of the eavesdrop and to suppress the search and seizures for the same reason. At the suppression hearing on the eavesdrop evidence, Assistant State’s Attorney Denholm testified that he had petitioned Judge Dorf to extend the time in which the State was to notify those persons whose conversations had been electronically intercepted through the transmitter in the hospital room. Mr. Denholm told the hearing judge that Judge Dorf had signed such an order extending the time for notification to June 9,1976, but that neither Judge Dorf nor Mr. Denholm was able to locate a copy of it. Denholm further stated that it was not placed under seal and turned over to the clerk of the court but that he, Denholm, kept it in his file.

A paper writing purporting to be a copy of the petition to extend the time for notification was offered by the State. The petition was rejected by the hearing judge as the result of an objection, but the testimony of Mr. Denholm remained despite appellants’ efforts to have it stricken. Other issues raised by the appellants were the failure of the State to comply with the order directing the surrender of the tapes to Judge Dorf immediately upon the termination of the eavesdrop and failure to minimize so as to avoid the overhearing of privileged communication. Appellants contend that a lapse of four (4) days between the cessation of the eavesdrop surveillance and the surrender of the tapes to Judge Dorf cannot be equated to “immediate,” and that the ⁵¹ listening to and, in some instances with respect to the wiretaps, recording of privileged communications between counsel and client vitiates the wiretap order.

The hearing judge suppressed “out of an abundance of caution” the conversations between attorney and client but denied the other motions. The reasons assigned were that “the failure to provide notice [of the eavesdrop] was an inadvertence” and that “the notification requirements were substantially complied with and there has been no showing of prejudice. . . .” The matter of the delay in turning the eavesdrop tapes over to Judge Dorf was not ruled upon in the criminal court and has not been pressed here. In any event, its delay is de minimis. United States v. Sklaroff, 506 F. 2d 837 (5th Cir. 1975), cert. denied, 423 U. S. 874 , 96 S. Ct. 142 , 46 L.Ed.2d 105 (1975).

II

POST-ORDER COMPLIANCE WITH FEDERAL ELECTRONIC INTERCEPTION ACT. A. Application for Notification Extension Order. Title III, 18 U.S.C. § 2518 (8)(d) (1970) provides: “Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7) (b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of — (1) the fact of the entry of the order or the application; (2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and ⁵² (3) the fact that during the period wire or oral communications were or were not intercepted. The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice.

On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.” ^ Although there was testimony by Mr. Denholm that he petitioned for and obtained an extension of the time in which to notify those parties whose oral communication had been intercepted by the police, no order authorizing the delay in notification was ever found. 8 9 That mishap presents several interesting questions, videlicet — Is post-order compliance with 18 U.S.C. §§ 2510-2520 on the same footing as pre-order compliance? Is the failure to seal an order extending notification fatal to the validity of the original intercept order? Does section 2518(8)(d) require the principal attorney to seek an extension of notification order, just as section 2516(2) mandates his making application for the original intercept order or may he delegate that task? Although Siegel declares that the Court of Appeals will not abide the slightest deviation from the prescribed path with respect to electronic surveillance, Spease and Ross v. State, 275 Md. 88 , 338 A. 2d 284 (1975), distinguishes between pre-order compliance and post-order compliance.

In Spease, Chief Judge Murphy noted that Siegel turned on the failure of the order authorizing the wiretap “to meet the precondition requirements ... [unlike Spease\ in that... it did not specify that the surveillance was to be conducted over a certain time period; that there was to be automatic termination upon the ⁵³ interception of certain conversations;” Id at 108, 338 A. 2d at 295 , nor was there a minimization of listening to non-pertinent conversations or instruction to terminate upon attainment of the objective. The Spease case clearly involved post-order notification. Spease did not receive the notice prescribed by section 2518(8)(d) because in the view of the issuing judge, Spease was not the target of the order nor was he named in the order. Spease, did, however, receive informal notice of the wiretap three (3) weeks before trial.

His rights under section 2518(9), which prohibits use of evidence of intercepted communications unless at least ten (10) days prior to trial the party against whom it is to be offered is furnished with a copy of the application and the electronic interception order, were not breached. With respect to Ross, the target of the interception and Spease's codefendant, there was no formal compliance with section 2518(8)(d), but Ross did receive a copy of the search and seizure warrant and affidavit in support thereof. The affidavit for the search and seizure warrant contained “all the details concerning the interception.” Id. at 103 , 338 A. 2d at 293 . The Court held with regard to Ross that the notification he received “constituted compliance with the inventory requirement of the statute.” Id. at 106 , 338 A. 2d at 294 .

Spease, the Court said, received “actual notice of the wiretap ... almost six months prior to trial, ... [and] did not suffer any prejudice,” Id. at 109 , 338 A. 2d at 296 , resulting from the failure of the State to follow precisely the inventory notification. At first glance Spease appears to conflict with Siegel. A careful reading of both cases makes it transpicuous that Siegelis directed to pre-intercept and intercept conditions. As to those two (2) happenings, not the slightest deviation from the statute will be sanctioned.

On the other hand, Spease indicates that when post-intercept events are brought into question, the Court looks to the facts so as to ascertain whether there has been substantial compliance with the post-intercept provisions of the act and whether there has been actual prejudice to the defendant. Thus, it is obvious that there is a distinction between pre-order and post-order compliance. In the former, a defect will void the order and ⁵⁴ cause suppression of the evidence, but in the latter, a defect will not vitiate the order if there has been substantial compliance and no prejudice to the defendant is shown. The failure to seal an order extending the time in which notification of the inventory required by section 2518(8)(d) is a post-order condition.

The act itself is silent as to both the form of the order, Spease & Ross v. State, supra, and as to whether the order is to be sealed. We think that the spirit of the act necessitates that such extension orders be under seal and kept in the same place as the original intercept order. We so think because inasmuch as the purpose of the act is confidentiality, it is illogical to require the original order to be under seal of the court, and hence not public information until its existence is revealed at trial, if an order allowing an extension of time for notification of the inventory is not sealed and thus part of the public records. While the extension of notification order does not disclose the contents of the interception, it does, unless sealed, make the existence of an interception public.

We believe the intent of the Congress to have been that all ex parte orders extending the time in which the inventory notice is to be served upon the persons named in the interception order “and such other parties ... as the judge may determine ... in the interest of justice,” 18 U.S.C. § 2518 (8)(d) (1970), must be under seal of the court and treated in the same manner as the order authorizing interception. The question still remains as to whether the failure to seal the order extending the time in which the notification mandated by section 2518(8)(d) is fatal. In the instant case, the order that extended the time in which to notify the parties whose conversations had been intercepted was kept by the Assistant State’s Attorney “in his files.” There is nothing to indicate that the order was docketed. The State, conceding “that the procedures followed ... in this case were not only inappropriate but rather careless,” argues that because the order was retained by the assistant prosecutor, “it is apparent that . . . [it] was not docketed or otherwise published.

Therefore, . . . confidentiality was maintained in regard to ⁵⁵ notification and substantial compliance was accomplished.” We are unable to share the State’s conclusion that the petition for and the order allowing the extension of time for notification did not become public. There is no evidence as to what person or persons had access to the Assistant State’s Attorney’s files, and, indeed, in view of his inability to locate the order, it is reasonably safe to infer that the order was not placed in the file, or if placed there, was removed by some unauthorized person. Either happening makes confidentiality suspect. Nevertheless, the failure to have the extension order sealed, in view of its not being docketed, would not appear to be such a substantial departure from the post-order procedures of Title III, 18 U.S.C. § 2518 as to require suppression.

B. Role of Principal Attorney. Title III, 18 U.S.C. § 2516 provides in pertinent part: “(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize on application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of— (a) any offense punishable by death or by imprisonment for more than one year under sections 2274 through 2277 of title 42 of the United States Code (relating to the enforcement of the Atomic Energy Act of 1954), or under the following chapters of this title: chapter 37 (relating to espionage), chapter 105 (relating to ⁵⁶ sabotage), chapter 115 (relating to treason), or chapter 102 (relating to riots); (b) a violation of section 186 or section 501(c) of title 29, United States Code (dealing with restrictions on payments and loans to labor organizations), or any offense which involves murder, kidnapping, robbery, or extortion, and which is punishable under this title; “(2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.” (Emphasis supplied.) The Supreme Court, in United States v. Giordano, 416 U. S. 505 , 94 S. Ct. 1820 , 40 L.Ed.2d 341 (1974), construed section 2516(1) as meaning that only the “Attorney General or any Assistant Attorney specifically designated by the Attorney General,” 18 U.S.C. § 2516 (1) (1970), was authorized to apply ⁵⁷ to a federal judge for an electronic interception order. An approval of the application by the “Executive Assistant to the Attorney General,” Id. at 510 , 94 S. Ct. at 1824 , 40 L.Ed.2d at 350 , based on his “knowledge of the Attorney General’s actions in previous cases,” Id., did not satisfy the statute. A wiretap order by the United States District Court for the District of Maryland was invalid and the evidence derived therefrom was suppressed.

Section 2516(2) speaks of “[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision____” The language of that section does not confer upon the principal prosecuting attorney any power to delegate to an assistant the authority to apply for an electronic interception. The Congress would not have so carefully limited the power of the Attorney General of the United States to delegate to a specifically designated assistant the authority to seek orders to intercept oral or telephonic communications and at the same time bestowed upon the principal prosecutor of any State, city or county in the nation an unbridled license to clothe any or all of his or her assistants with permission to seek such orders. It is inconceivable that the country’s highest legal officer would be so shackled while the principal prosecutor of the least populated county in the United States was free to permit any designee to apply for an interception order. We think the intent of the Congress to be that the authority devolved upon the principal prosecutor of the State or of the political subdivision, is personal to him, and may not be delegated. “[T]he authority to apply for court orders is to be narrowly confined ... to those responsive to the political process, a category to which the ... [Assistant State’s Attorney] does not belong.” 10 United States v. Giordano, 416 U. S. at 520 , 94 S. Ct. at 1829 , 40 L.Ed.2d at 356 .

We are supported in our holding by an examination of former Md. Cts. & Jud. Proc. Code Ann. § 10-403 (1974) and former Md. Ann. Code art. 27, § 125A-D, which were in effect ⁵⁸ at all times during the surveillance, indictment, and trial of this case, as well as the current Md. Cts. & Jud. Proc.

Code Ann. § 10-406 (Supp. 1977). All speak of “The Attorney General or any State’s Attorney” as being the person to apply for “an order authorizing the interception of wire or oral communications____” Id. Nowhere in any of the former statutes or the present statute is there so much as a hint that the Attorney General or the State’s Attorney may delegate the authority to apply for interception orders. The statutes, both past and present, empower only the Attorney General or the State’s Attorney to seek such orders.

It is a power entrusted solely to them as they are the ones answerable through the political process to the electorate. Title III, 18 U.S.C. § 2518 (8)(d) (1970) does not indicate whether the ex parte showing of good cause for a postponement of the inventory must be made by the principal prosecutor. In fact, the last sentence of 18 U.S.C. § 2518 (8)(d) (1970) that “[o]n an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed” read literally suggests that the ex parte showing need not be made to the judge that issued or denied the interception order. The other language of 18 U.S.C. § 2518 (8)(d) (1970) concerns the judge who issued or denied the order.

If the statute means what it seems to say, it is theoretically possible for the issuing or denying judge to cause the inventory to be served while another “judge of competent jurisdiction” is simultaneously postponing the notice. Needless to say, such a situation would wreak havoc with any ongoing investigation. We think the statute has to be read as meaning the ex parte showing for a postponement of notice must be made to the issuing or denying judge unless that judge is no longer on the bench or because of physical or mental disability is unavailable. Furthermore, we believe that the ex parte showing for good cause for a postponement of notice is to be made by the principal prosecuting attorney and not his representative.

We so believe because the provisions of the statute sanctioning the interception order provides that the order may be passed or denied by the judge on application of the principal ⁵⁹ prosecutor, and we cannot find within it any indication, expressed or implied, empowering the delegation of that authority by the principal prosecutor. In our view, the Congress did not intend for the principal prosecutor to shift responsibility to an assistant once the order was issued or denied. C. Effect of Failure to Notify Within Statutorily Stated Time. During the course of an oral opinion delivered at the close of the suppression hearing in the matter now before us, the judge, after observing the fulfillment of the notice provisions of the act with respect to the wiretap, said: “There’s no such notification of the eavesdrop.

Defendant’s counsel cites Washburn v. State, 19 Md. App. 187 , at page 199, where it was asserted that notice requirements are mandatory and recognized that notice may be postponed on a showing of good cause. It is further contended that ... [section] 2518(8)(b) requires that all applications and orders granted under this chapter must be sealed by the judge. The State admits that this was not done. If this section can be construed as a precondition for the validity of the order authorizing the eavesdrop, then communications obtained thereby should be suppressed.” The judge did not so construe section 2518(8)(b).

She denied the suppression motion grounded on the fact that the defendants received notice and inventory even though the receipt was without the ninety (90) days prescribed by section 2518(8)(d). The judge also observed that there was no showing by the defendants that they were prejudiced by the delay in notification and inventory of the eavesdrop. The appellants read section 2518(8)(d) as mandating that if the notice and inventory is not furnished by the State to defendants within the ninety (90) day period or any extension thereof, the eavesdrop is flawed and the evidence, directly or ⁶⁰ indirectly obtained therefrom, should be suppressed. We disagree.

The Supreme Court, in United States v. Donovan, 429 U. S. 413 , 97 S. Ct. 658 , 50 L.Ed.2d 652 (1977) in reversing Donovan v. United States, 513 F. 2d 337 (6th Cir. 1975), said: “The legislative history [of the Omnibus Crime and Safe Streets Act of 1968] indicates that postintercept notice was designed instead to assure the community that the wiretap technique is reasonably employed. But even recognizing that Congress placed considerable emphasis on that aspect of the overall statutory scheme, we do not think that postintercept notice was intended to serve as an independent restraint on resort to the wiretap procedure. ”[ 11 ] (Emphasis supplied.) 429 U. S. at 439 , 97 S. Ct. at 674 , 50 L.Ed.2d at 675 . Similar views are expressed by some Federal Circuit Courts of Appeal before the Supreme Court decided Donovan. See e.g., United States v. Bohn, 508 F. 2d 1145, 1148 (8th Cir. 1975), cert. denied, 421 U. S. 947 , 95 S. Ct. 1676 , 44 L.Ed.2d 100 (1975); United States v. Rizzo, 492 F. 2d 443, 447 (2d Cir. 1974), cert.